Stopping Time: The Pro-Slavery and "Irrevocable" Thirteenth Amendment

Bryant, A. Christopher, Harvard Journal of Law & Public Policy

I. EXTRALEGAL AUTHORITY AND THE
CREATION OF ARTICLE V
II. HISTORICAL CONTEXT OF THE CORWIN
AMENDMENT
III. LEGISLATIVE HISTORY OF THE CORWIN
AMENDMENT
A. Debate in the House of Representatives
B. Debate in the Senate
1. Political Positions on the
Corwin Resolution
2. Constitutional Challenge to the Corwin
Resolution
IV. EFFICACY OF THE CORWIN AMENDMENT
V. CONTEMPORARY SIGNIFICANCE OF THE
CORWIN AMENDMENT
A. Conflicting Understandings of Article V
B. Applying the Lessons Learned from the
Corwin Amendment
VI. CONCLUSION

In the post-secession winter of 1861, both Houses of Congress approved a proposed thirteenth amendment to the U.S. Constitution. Three northern States even managed to ratify the proposal before the Civil War intervened. That version of the thirteenth amendment, introduced in the House by Representative Thomas Corwin of Ohio, purported to prohibit any future amendment granting Congress power to interfere with slavery in the States. The Congressional Globe volumes for the winter 1861 legislative session include rich debates about whether the amending power could be used to limit future exercise of that same authority. Those forgotten debates offer significant insights for modern controversies about the exclusivity of, and limitations on, the extraordinary power granted in Article V of the U.S. Constitution.

Not long ago the consensus among constitutional scholars was that, for better or worse, Article V of the U.S. Constitution was a dead letter. (1) But reports of Article V's demise have been greatly exaggerated, and the amending provision has more recently enjoyed something of a resurrection, both in Congress and among legal academics. (2) In the last decade Article V has served as an outlet for widespread discontent with Supreme Court decisions protecting flag-burning, prohibiting prayer in public schools, and voiding congressional term limits. These are only the most recurrent and high-profile examples of a growing political trend toward employing constitutional amendment as a means to address divisive and vexing national issues. Indeed, the proliferation of proposed constitutional amendments introduced in Congress has raised questions about whether they reflect a dangerous disrespect for our existing constitutional order. (3)

No doubt these recent invocations of Article V are in part responsible for the recent outpouring of academic writing on the amending power. Salient examples of this scholarship are the works of Yale Law School Professors Bruce Ackerman and Akhil Amar, who have raised distinct challenges to the claim that Article V constitutes the sole legitimate means for constitutional revision. (4) Their imaginative and controversial work has in turn prompted vigorous debate among constitutional scholars, political scientists, and historians about the role Article V can and should play in our constitutional order. (5)

As voluminous as the recent Article V scholarship has been, at least one fundamental question has gone virtually unnoticed: what, if anything, prevents or limits the use of Article V to make procedural or substantive changes to the amending power itself? This question presents problems of the greatest theoretical difficulty. One might be tempted to dismiss the question as merely academic or historical, but a constitutional amendment proposed in the 106th Congress would have authorized two-thirds of the State legislatures to propose future amendments, which would, in turn, be referred back to the States for ratification unless two-thirds of both Houses of Congress voted to kill the proposals. (6) The question whether the amending power could be employed to amend the amending power was posed even more starkly by Mr. Corwin's 1861 proposal.

This article uses that Civil War-era proposal as a lens through which to study the tension between the claim that Article V articulates the exclusive procedure by which the Constitution may be amended and our nation's historical commitment to the ideal that the people are sovereign. …

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